Butterfield v. Farnham

• Decision Date: 01 January 1874
• Citation: 19 Minn. 58
• Parties: FREDERICK BUTTERFIELD v. SUMNER W. FARNHAM and others.
• Court: Minnesota Supreme Court

19 Minn. 58

FREDERICK BUTTERFIELD

v. SUMNER W. FARNHAM and others.

Supreme Court of Minnesota.

Appeal by plaintiff from a judgment of the district court, Hennepin county.

Action to determine adverse claims to real estate. Plaintiff claimed title by conveyance from Franklin Steele and wife, dated October 9, 1868, and recorded August 2, 1869. The defendants claimed under a mortgage from Steele dated July 10, 1858, and the foreclosure thereof. The requirements of the mortgage in regard to foreclosure, and the amount legally due at the time of the foreclosure, and the amount claimed to be due in the foreclosure notice, are stated in the opinion.

Bigelow & Clark, for appellant.

Lochren & McNair, for respondent.

RIPLEY, C. J.

It is admitted that, except in respect of the amount claimed to be due, the mortgage under which the respondents derive title was foreclosed in conformity to the requirements of the statute then in force, (Comp. St. c. 75;) but the appellant contends that the foreclosure was void for want of conformity to certain requirements contained in the power of sale in said mortgage, and other than those prescribed by statute.

Said power of sale provides that on default in the payment of the mortgage debt it shall be lawful for the mortgagee to enter upon the premises and sell the same, and the mortgagor's equity of redemption therein, at public auction; such sale to be upon the premises, upon three successive weeks' publication of the time and place, in any newspaper printed in the county of Hennepin, rendering the surplus money, if any there be, over the debt and charges, together with a true and particular account of the sale and charges, to the mortgagor; which sale it is provided shall bar all equity of redemption.

The points of objection specified are (1) that the mortgagee should have entered and taken possession of the premises before the sale; (2) that the sale was not made on the premises; (3) that no account of the sale was furnished to the mortgagor.

The statute aforesaid provides that every mortgage containing therein a power of sale, upon default being made in any condition of such mortgage, may be foreclosed by advertisement in the cases and in the manner hereinafter specified. Section 1.

This in terms extends to and includes all mortgages and all powers of sale whatsoever in any mortgage contained. It is the plainest possible statement that any such mortgage may be foreclosed in the cases mentioned by taking the steps prescribed. It is not disputed that this was within the power of the legislature.

It is unnecessary to consider whether or not the statute is imperative; whether, for instance, if the parties contracted for a different mode than that in the statute provided for, a foreclosure conducted according to the contract would or would not be valid. In New York a similar statute seems to have been held imperative. Lawrence v. Farmers' Loan & T. Co. 13 N. Y. 200.

In Elliott v. Wood, 53 Barb. 285, a doubt is expressed whether the above-mentioned case does hold that the method prescribed by the statute must be strictly followed. Here no such question arises. The method prescribed by the statute has been followed. Why, then, is not this mortgage foreclosed? Because, says the appellant, the contract required something more. But if the legislature, having the right to say so, has said what shall in every case be sufficient to constitute a valid foreclosure, individuals certainly can have no right to say that a particular foreclosure should be invalid unless something else was done in addition.

There is no difference in principle between a power of sale which requires the mortgagee to take the statutory steps and some additional step, and one which requires him to pursue a course altogether different from that which the statute prescribes.

The contract in each case, if it were to be held obligatory upon the party, would amount to a repeal of the statute by individual authority; for it is, in each case, that that which the law has said shall be a valid foreclosure, shall not have that effect, but that something else shall.

With respect to the first and last matters of objection above mentioned no question would be made but that the power of sale required more than the statute. With respect to the first, it may also be remarked that the decisions from Massachusetts cited by the appellant are inapplicable in the absence there of such a statute as ours.

With respect to the requirement in the power mentioned in the second objection, however, (that the sale should be on the premises,) it may not at first sight be so obvious that it is a requirement in addition to those of the statute. This will appear to be so, however, upon a little reflection.

The statutory requirement is only that it must be in the county, and section 1 declares that a mortgage may be thus foreclosed; i. e., by a public sale made in the county. When it appears, then, that such a sale has been held in the county, the statute is satisfied, and the mortgage has been...